A. Defining Public Domain

“Public domain” encompasses, under standard IPRs law, knowledge that is not subject to IPRs currently in force, whether registered or not.132 Knowledge in the public domain is free for use by anybody, without consent of or remuneration to its holder. But the freedom to use knowledge in the public domain also means that nobody can appropriate it, unless modified in a way that permits legitimate claims of IPRs. There are, of course, communication channels between the “private” and the “public” domains, since the former draws on the latter and, once IPRs expire, protected knowledge falls into the public domain.

132 Patents, utility models, designs and (in some jurisdictions) trademarks, are acquired through registration, while copyright and trade secrets do not require such a formality.

Public domain and public availability of knowledge are not equivalent concepts. Thus, knowledge published in a patent is available to the public, but it cannot be used without the consent of the patent owner. Conversely, knowledge held secret but ineligible for protection under trade secrets law (for instance, because of lack of actual commercial value) belongs to the public domain.

One important implication of the concept of public domain in the context of traditional knowledge is that, unless protected by an existing modality of IPRs, knowledge even if not publicly available (for instance, when held by a small community or a few individuals) would be deemed to belong to the public domain. Hence, under current IPRs law, anybody may use such knowledge, without prior consent or compensation.

As examined above, much of the debate on traditional knowledge has been triggered by cases in which knowledge that was publicly available has been appropriated under patent rights. As illustrated by the turmeric case, such patents, if challenged, may be revoked and become legally void, because the claimed invention does not comply with the novelty requirement. An additional reason (that has often been overlooked) is that in such cases of “bio-piracy” there is also a violation of the inventorship rules generally provided for under patent laws. Though a patent should be granted (according to the “first to file” system) to the first person to apply for it, he/she should be entitled to the patent on the basis of an act of invention, or as a legitimate successor in right to the inventor.133 The main problem, however, arises when certain traditional knowledge is neither publicly available nor subject to a specific modality of IPRs and, hence, only technically in the public domain. Different strategies may be followed to deal with this problem.

133 See a further analysis of this issue in IV.c below.

One strategy would aim at ensuring that the true holders of such knowledge claim and obtain protection under IPRs, so as to effectively remove such knowledge from the public domain. Efforts to apply trade secret law to traditional knowledge are essentially based on this approach.134 Though this strategy may be successful in some cases, in others the holders of knowledge may be unwilling or unable to comply with the complex procedures necessary to acquire and exercise IPRs.

134 For instance, the “BIOZULUA” database established by the Venezuelan Fundación para el Desarrollo de las Ciencias Físicas, Matemáticas y Naturales (FUDECI) stores information held by different ethnic groups regarding plants and animals deemed useful for food and medicinal use, as well as the associated knowledge. The collected information is handled as a trade secret in order to avoid undue appropriation and use (see Vivas and Ruiz Müller, 2001, p. 15-16).

An alternative approach would be to redefine the concept of public domain, by ensuring recognition to customary laws as part of the “private” domain, as long as such laws provide for some form of ownership over knowledge. This approach would address the problems associated with appropriation and lack of compensation for traditional knowledge, although would not be applicable to some o- l cal/indigenous peoples and has delicate political implications that may be difficult to tackle in many countries.135

135 See section IV.J below.

It may also be possible to consider that knowledge that is known to a community but which is not used (or presumably known) outside of that community has not been made available to the public. The presence of customary laws or practices within a community limiting or prohibiting use and dissemination of such knowledge outside of the community, might be taken into account to demonstrate that unfettered disclosure, as recognized by modern IP systems, might not have occurred.136

136 See the Report on the Traditional Knowledge Workshop, 24 January 2002, Commission on Intellectual Property Rights, available at www.iprcommission.org